Access to Justice

Access to justice is a vital human right and abuses of that right are a common subject for pro bono lawyers. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948 (the “Declaration”) includes several articles that highlight the importance of access to justice.1 Article 8 of the Declaration states that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Article 10 of the Declaration states that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charges against him.” Accordingly, barriers to a fair and public hearing or to an effective remedy are contrary to human rights as described in the Declaration.

The principle of access to justice for all under international law was further strengthened on March 23,
1976 when the International Covenant on Civil and Political Rights (the “Covenant”) entered into force.2
Article 2 of the Covenant states that each party to it will “ensure that any person whose rights or freedoms
as herein recognized are violated shall have an effective remedy.” The Covenant also includes the
obligation to “ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority provided
for by the legal system of the State.”

The United Nations Development Program has identified these and other international agreements or
declarations as components of a normative framework for access to justice in international law.3 In
addition to these agreements and declarations, there are also various regional human rights systems that
have a history of recognizing the right to access justice.

English law has recognized the right of equal access to justice since 14954 when Parliament recognized
that equality could not exist without reducing the economic barriers to justice faced by poor litigants. On
the European Continent, different regions and cities began providing the services of counsel for free
during the 15th and 16th centuries5, largely inspired by church courts in the Middle Ages that did not
charge court costs.6 In the 19th century, the right to counsel was enacted through various European
national legislatures.

In 1979, the European Court of Human Rights held in Airey v. Ireland7, that Article 6 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (which enshrines the right to
a fair trial) sometimes: “compel[s] the State to provide for the assistance of a lawyer when such
assistance proves indispensable for an effective access to court either
because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case.”8

Despite all of these developments, the right to counsel provided through government legal aid is not
recognized in all jurisdictions and progress still needs to be made before it can be considered an
international law norm. Where it is recognized, a state’s universal access to justice program typically
takes the form of the provision of legal aid that assists with the costs associated with legal representation
and court costs. In practice, however, legal aid systems can suffer severe limitations due to budgetary
constraints. This is evident even in those jurisdictions that are the most supportive of the right of access
to justice. The high-profile concerns raised by The Law Society of England and Wales to the proposed
cuts to the provision of legal aid in the United Kingdom9 are a clear example of that. It was heartening to see that when the Law Society of England and Wales challenged the UK government's move to cut legal aid, the High Court ruled that such cuts were unlawful and should be quashed.10 Legal aid systems
are also only effective for those who are sufficiently well informed regarding the availability of these
services.

In many cases, including in the US, direct support for the costs of legal representation is provided only
where the relevant individual faces incarceration. Access to justice for those facing the loss of other
important civil and economic rights is thus imperiled.

Where access to justice is constrained or the provision of legal aid is limited, the importance of pro bono
counsel is obvious. A willingness on the part of each member of the legal profession to do some work
without remuneration or reward can do much to fill the access to justice gap in their respective
jurisdictions. As stated by the United States Supreme Court, “in a time when the need for legal services
among the poor is growing and public funding for such services has not kept pace, lawyers’ ethical
obligation to volunteer their time and skills pro bono publico is manifest.”11

Access to justice is a fundamental human right and one that pro bono lawyers in every jurisdiction need to
protect and support diligently. Access to justice is particularly critical for the indigent peoples of the world,
those who typically depend on support for many of their basic needs (food, housing, heating etc.), and
access to justice should be seen as no less fundamental. Furthermore, access to justice without
appropriate legal advice puts the claimant at an immediate disadvantage. Pro bono lawyers can do so
much to correct that imbalance.

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